NativeScript Sidekick Enterprise Cloud BETA - Terms of Service
Last Updated January 1, 2019
Progress NativeScript Sidekick Enterprise Cloud aka Private Cloud (as defined below) is a beta feature of Progress NativeScript Sidekick and a Progress Product (as defined in the General Terms). Private Cloud is being made available by Progress Software Corporation (“Progress,” “we,” “us,” or “our”) to You on the condition that You agree to these terms and conditions (the “Terms of Service” or “Agreement”). “Licensee,” “You,” or “Your” refers to the person accessing or using the Services, or, if the Services are being used on behalf of an organization, such as an employer, “Licensee,” "You," or “Your” means such organization. In the latter case, the person accessing or using the Services represents and warrants that he or she has the authority to do so and bind such organization to these Terms of Service. Violation of any of the terms below will result in the termination of this Agreement and the Services. BY CLICKING THE "I ACCEPT" BUTTON, COMPLETING THE REGISTRATION PROCESS, OR USING THE SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE REVIEWED AND ACCEPT THESE TERMS AND ARE AUTHORIZED TO ACT ON BEHALF OF, AND BIND TO THIS AGREEMENT, THE OWNER OF THIS ACCOUNT. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT ACCESS OR USE THE SERVICES.
BY AGREEING TO THIS AGREEMENT YOU ARE BECOMING A PARTICIPANT IN THE PRIVATE CLOUD BETA PROGRAM (“PROGRAM”). THE SERVICES PROVIDED TO YOU AS PART OF THE PROGRAM ARE BELIEVED TO CONTAIN DEFECTS. A PRIMARY PURPOSE IN PROVIDING THE SERVICES, FOR WHICH NO FEES HAVE BEEN CHARGED OR ARE DUE FROM YOU, IS TO OBTAIN YOUR FEEDBACK ON THE SERVICES’ PERFORMANCE AND THE IDENTIFICATION OF DEFECTS. YOU ARE ADVISED TO SAFEGUARD IMPORTANT DATA, TO USE CAUTION AND NOT TO RELY IN ANY WAY ON THE CORRECT FUNCTIONING OR PERFORMANCE OF THE SERVICES AND/OR ACCOMPANYING MATERIALS.
This Agreement contains Additional Terms for Progress NativeScript Sidekick which are made a part of and are subject to the General Terms of Service for Progress NativeScript Sidekick available at: https://www.telerik.com/purchase/license-agreement/nativescript-sidekick (the “General Terms”) and by agreeing to the terms of this Agreement You also agree to the General Terms. Any defined terms used but not defined in this Agreement have the meanings ascribed to them in the General Terms.
SOFTWARE PRODUCT LICENSE
This is a license agreement and not an agreement for sale.
You acknowledge, understand and agree that the Services and any included software or documentation are in “Beta”, which means that (i) it is a test version of unreleased services and/or software that may contain bugs, defects and errors, (ii) it is not expected to contain the functionality or functions of the version of such services and/or software that Progress may make available for commercial distribution, and (iii) any feedback with respect to Your use of the Services is subject to the ownership provisions of Section 4, and may be used and incorporated into any services and/or software product(s) commercially released by Progress.
The “Services”, as used herein, includes the Beta version of the Progress software services currently referred to as “Progress NativeScript Sidekick Enterprise Cloud” and/or “Private Cloud” or any new products, updates, components, features or functionality that Progress provides to you as well as any accompanying documentation. The Services are protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties and contain confidential information and trade secrets. Progress retains all rights not expressly granted to you in this Agreement.
1. BETA LICENSE
Subject to the terms and conditions set forth in this Agreement and the AUP, Progress hereby grants to you, and you accept, a limited, personal, non–exclusive, non–transferable, non-sublicensable license to access and use the Services through NativeScript Sidekick, solely as authorized below (“Beta License”). You acknowledge that you receive no right under this Agreement to receive a license to any future commercial product which may be similar to, based upon or identical to the Services.
1.2 Scope of Use.
Under the Beta License granted to you pursuant to this Section 1, you may access and use the Services during the Term for the sole purpose of testing the functionality of the Services. While You are permitted to create an Application for internal and personal evaluation, You are not allowed to integrate the Services into end products or use the Services for any commercial or productive purpose. You expressly acknowledge and understand that such use is at your own risk and is subject to the assumption of risk, disclaimers and warranties set forth in this Agreement.
1.3 Assumption of Risk.
Use of the Services is at Your sole discretion and risk. You should take adequate precautionary measures to back up and protect Your Content and any other content or data. As set forth in this Agreement, the Services are in a Beta phase and subject to changes following Your initial access and/or use of the Services.
1.4 No Redistribution.
You may NOT redistribute the Services or anything created with the Services including but not limited to Applications.
During the Term of this Agreement and subject to the limitations and restrictions described in the Fair Usage Policy set forth in Section 2.2, Progress may, in its sole discretion, make certain support services available to you.
Fair Usage Policy. Progress may limit or terminate Your access to any or all of the support services available under this Agreement if Your use of the support services is determined by Progress, in its sole and reasonable discretion, to be excessive.
3. LICENSE LIMITATIONS
Except as required by law or expressly required by third party licenses applicable herein, You are not allowed to disassemble, decompile or “unlock”, decode or otherwise reverse translate or engineer, or attempt in any manner to reconstruct or discover any source code or underlying algorithms of the Services.
You are not allowed to resell, transfer, rent, lease, or sublicense the Services and Your associated rights.
You are not allowed to copy, modify, merge, or distribute copies of the Services or any accompanying documents.
As a participant in the Program, Your feedback is valuable to Progress. You license to Progress without charge all intellectual property or other rights necessary for Progress to use, share, and commercialize in any way or for any purpose any feedback about the Services you provide. You also license to all third parties without charge all intellectual property or other rights necessary for their products, technologies and services to use or interface with any specific parts of Progress software or services that includes the feedback. You will not give feedback that is subject to any license that requires Progress to license its software or documentation or provide its services to third parties. The rights granted in this paragraph are perpetual and world-wide and survive the termination or expiration of this Agreement.
Progress shall make the Services available to Licensee for access and use in electronic format via the NativeScript Sidekick Hosted Services only.
6. INTELLECTUAL PROPERTY
All title and ownership rights in and to the Services (including but not limited to any images, photographs, animations, video, audio, music, or text embedded in the Services), the intellectual property embodied in the Services, and any trademarks or service marks of Progress that are used in connection with the Services are and shall at all times remain exclusively owned by Progress and its licensors. All title and intellectual property rights in and to the content that may be accessed through use of the Services is the property of the respective content owner and may be protected by applicable copyright or other intellectual property laws and treaties. This Agreement grants You no rights to use such content. Any open source software that may be delivered by Progress embedded in or in association with Progress products is provided pursuant to the open source license applicable to the software and subject to the disclaimers and limitations on liability set forth in such license.
7. THIRD PARTY MATERIALS
Certain third-party components may be embedded in, hosted with, or accessible in connection with the Services. These components, if any, are identified in, and subject to, special license terms and conditions set forth in the “readme.txt” file, the “notices.txt” file, the “Release Notes” file, or the “Third-Party Software” file accompanying the Services (“Special Notices”). The Special Notices include important licensing and warranty information and disclaimers. Unless otherwise expressly stated, for any particular third-party component, all third-party components included in connection with or accompanying the Services may be used solely in connection with the use of the Services subject to and in accordance with the terms and conditions of this Agreement and the Special Notices. In the event of a conflict between the Special Notices and the other portions of this Agreement, the Special Notices will take precedence (but solely with respect to the third-party component(s) to which the Special Notice relates).
8. PRE-RELEASE CODE; NO WARRANTY
THE SERVICES CONTAIN PRE-RELEASE CODE THAT IS NOT AT THE LEVEL OF PERFORMANCE AND COMPATIBILITY OF GENERALLY AVAILABLE PRODUCT OFFERING AND MAY NOT OPERATE CORRECTLY. YOUR EXERCISE OF ANY RIGHTS UNDER THIS AGREEMENT IS AT YOUR SOLE DISCRETION AND YOU ASSUME ALL RESPONSIBILITY FOR, AND RISK OF, ANY AND ALL DAMAGES THAT MAY RESULT FROM OR IN CONNECTION WITH THE EXERCISE OF SUCH RIGHTS, INCLUDING WITHOUT LIMITATION THE LOSS OF ANY DATA OR OTHER CONTENT.
THE SERVICES ARE LICENSED ‘AS IS’. YOU BEAR THE RISK OF USING THE SERVICES. PROGRESS GIVES NO EXPRESS WARRANTIES, GUARANTEES OR CONDITIONS. YOU MAY HAVE ADDITIONAL RIGHTS UNDER YOUR LOCAL LAWS WHICH THIS AGREEMENT CANNOT CHANGE. TO THE EXTENT PERMITTED UNDER YOUR LOCAL LAWS, PROGRESS EXCLUDES THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
9. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL PROGRESS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF ADVISED OF THE POSSIBILITY THEREOF, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED. IN ANY CASE, PROGRESS’ ENTIRE LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT SHALL NOT EXCEED $5, NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS EXCLUSION AND LIMITATION MAY NOT BE APPLICABLE. PROGRESS IS NOT RESPONSIBLE FOR ANY LIABILITY ARISING OUT OF CONTENT PROVIDED BY LICENSEE OR A THIRD PARTY THAT IS ACCESSED THROUGH THE SERVICES AND/OR ANY MATERIAL LINKED THROUGH SUCH CONTENT. ANY DATA INCLUDED WITH OR IN THE SERVICES IS FOR TESTING USE ONLY AND PROGRESS HEREBY DISCLAIMS ANY AND ALL LIABILITY ARISING THEREFROM.
10. TERM AND TERMINATION
Unless terminated earlier, this Agreement shall remain in effect until the date of the official Progress NativeScript Sidekick Enterprise Cloud release (“Term”). Progress may terminate this Agreement at any time upon written notice to You. This Agreement shall terminate immediately if You breach the terms and conditions of this Agreement. Upon termination of this Agreement for any reason, all licenses granted to You under this Agreement shall terminate.
You agree to indemnify, hold harmless, and defend Progress and its resellers from and against any and all claims, lawsuits and proceedings (collectively “Claims”), and all expenses, costs (including attorney's fees), judgments, damages and other liabilities resulting from such Claims, that arise or result from Your use of the Services in violation of this Agreement.
“Confidential Information” includes, but is not limited to, nonpublic information and know-how transmitted or disclosed by Progress or Progress’ agents or contractors (including as a result of your participation in the Program) that is either designated as confidential or that, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be confidential. The Program and the Services are Confidential Information. You will not disclose the existence of or your participation in the Program, the Services or any comments regarding the Services to any third party without the prior written approval of Progress. You will maintain the confidentiality of the Program and the Services with at least the same degree of care that you use to protect your own confidential and proprietary information, but not less than a reasonable degree of care under the circumstances. You will not be liable for the disclosure of any Confidential Information which is: (a) in the public domain other than by a breach of this Agreement on your part; or (b) rightfully received from a third party without any obligation of confidentiality; or (c) rightfully known to you without any limitation on use or disclosure prior to its receipt from Progress; or (e) generally made available to third parties by Progress without restriction on disclosure. Your duty to protect Confidential Information survives the termination or expiration of this agreement.
13. Data/Information Collection, Use and Disclosure by Progress
14. GOVERNING LAW
This Agreement will be governed by the law of the Commonwealth of Massachusetts, U.S.A., without regard to the conflict of laws principles thereof. If any dispute, controversy, or claim cannot be resolved by a good faith discussion between the parties, then it shall be submitted for resolution to a state or Federal court or competent jurisdiction in Boston, Massachusetts, USA, and the parties hereby agree to submit to the jurisdiction and venue of such court. The Uniform Computer Information Transactions Act and the United Nations Convention on the International Sale of Goods shall not apply to this Agreement. If any provision of this Agreement is to be held unenforceable, such holding will not affect the validity of the other provisions hereof.
15. ENTIRE AGREEMENT
This Agreement (including the General Terms of Service for Progress NativeScript Sidekick) shall constitute the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous communications regarding the subject matter hereof. Use of any purchase order or other Licensee document in connection herewith shall be for administrative convenience only and all terms and conditions stated therein shall be void and of no effect unless otherwise agreed to in writing by both parties.
16. NO ASSIGNMENT
You may not assign, sublicense, sub-contract, or otherwise transfer this Agreement, or any rights or obligations under it, without Progress’ prior written consent.
For avoidance of doubt, any provisions of the Agreement containing license restrictions, warranties and warranty disclaimers, confidentiality obligations, limitations of liability and/or indemnity terms, and any provision of the Agreement which, by its nature, is intended to survive shall remain in effect following any termination or expiration of the Agreement.
If a particular provision of this Agreement is terminated or held by a court of competent jurisdiction to be invalid, illegal, or unenforceable, this Agreement shall remain in full force and effect as to the remaining provisions.
19. FORCE MAJEURE
Neither party shall be deemed in default of this Agreement if failure or delay in performance is caused by an act of God, fire, flood, severe weather conditions, material shortage or unavailability of transportation, government ordinance, laws, regulations or restrictions, war or civil disorder, or any other cause beyond the reasonable control of such party.
20. REPORTS AND AUDIT RIGHTS
Licensee shall grant Progress audit rights against Licensee twice within a calendar three hundred and sixty-five (365) day period upon two weeks written notice, to verify Licensee’s compliance with this Agreement. Licensee shall keep adequate records to verify Licensee’s compliance with this Agreement.
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, THAT YOU UNDERSTAND THIS AGREEMENT, AND UNDERSTAND THAT BY ACCESSING AND/OR CONTINUING TO ACCESS AND/OR USE THE SERVICES, LOADING OR RUNNING ANY RELATED SOFTWARE PRODUCT, OR BY PLACING OR COPYING ANY RELATED SOFTWARE ONTO YOUR DEVICE, YOU AGREE TO BE BOUND BY THIS AGREEMENT’S TERMS AND CONDITIONS. YOU FURTHER AGREE THAT, EXCEPT FOR WRITTEN SEPARATE AGREEMENTS BETWEEN PROGRESS AND YOU, THIS AGREEMENT IS A COMPLETE AND EXCLUSIVE STATEMENT OF THE RIGHTS AND LIABILITIES OF THE PARTIES.